Grounds for Divorce in Ontario (2024)

If you and your spouse have been living separate lives for more than one year, the Ontario Superior Court will grant you a divorce under the Divorce Act. However, you don’t have to wait until your year of separation, often called the “separation period,” is up before initiating the divorce process. You can apply for a divorce after the one-year separation period is up, and the divorce will be granted.

Even if you’re still sharing the same address with your spouse due to financial constraints, under certain circ*mstances, you may still be eligible to file for your divorce or have your divorce granted. To do this, you must meet the criteria of not “living as husband and wife.” Specific guidelines determine whether you’re considered to be living as a married couple.

When an application for divorce is filed based on a “one-year separation,” no other grounds or reasons for the divorce are required. This is commonly known in legal terms as a “no-fault divorce.” Under Ontario divorce law, the reasons that led to the marriage breakdown are not required to be disclosed to the court. The fact that you and your spouse live apart is sufficient.

Your evidence of having lived separately from when you claim you have is your affidavit. Remember, it’s essential to read and understand all the legal aspects involved in the divorce process.

If you have not been living separate lives from your spouse for over one year and you do not want to wait for the year to be up to qualify for a divorce under the “one-year separation” ground, you may be able to expedite your divorce process by filing for your divorce on the grounds of adultery.

Adultery and Divorce

Adultery occurs when either the husband or the wife has sexual intercourse with another person while still legally married to their spouse, as defined by the Canadian Marriage Act. The act of adultery need not take place when the spouses are still living together to qualify as “adultery”. Even after the spouses have started to live apart, if one party has sexual intercourse with someone else, it is still considered adultery under the Divorce Act.

However, if the adultery had taken place during the time the spouses were living together, and the other spouse, despite knowing about the adultery, continued to live as husband and wife with the adulterous spouse for a period of 90 days or more, then that act of adultery cannot be used as a ground for divorce. Under the present federal law, the injured party is said to have “condoned” the adultery by continuing to live in a marriage-like relationship with the adulterer. For the adultery to be used as a ground for divorce, the injured party must separate from the adulterer within 90 days of having learned of the adultery.

If your spouse is willing to admit to the adultery by swearing an affidavit before a clerk at a government office, then this is sufficient evidence of the adultery. Your divorce will still be considered a “simple” divorce. However, to be able to obtain your divorce under this ground, your spouse must be willing to provide the date and address at which the said adultery occurred. Then an affidavit to that effect must be sworn by your spouse. Arrangements for your spouse to swear it at a more convenient location can be made.

Please note: The name of the person with whom your spouse committed adultery is not required under the present law. What is required is how you found out about the adultery.

Your spouse can be assured that adultery is not against the law. There is no criminal sanction against adultery. It is simply a ground for divorce under the Ontario Divorce Law. However, in order to proceed under this ground, there can be no collusion on your part, in relation to the adultery.

If you wish to obtain a divorce from your spouse based on cruelty, it’s important to note that this will not be considered a “simple” divorce regarding legal procedures and fees.

To apply for a divorce based on cruelty, the law stipulates that the cruelty complained of must be “of a grave and weighty nature such as to render cohabitation intolerable,” according to the wording of the Divorce Act. This means that the cruelty must be so severe that it makes living together unbearable.

This aspect of the law, written many decades ago, has yet to be updated in recent years. It is widely viewed as archaic in the legal community, particularly among family law professionals. The reason for this is that the level of cruelty and the effect on the injured party that the law requires is of such severity that it excludes many legitimate victims of cruelty.

What may be considered cruelty by today’s standards may need to be more severe to meet the standards of this old and archaic section of the act. Therefore, it’s crucial to seek legal advice before proceeding with a divorce on the grounds of cruelty.

In the realm of family law, particularly in the context of divorce proceedings, certain conditions must be met when citing cruelty or adultery as grounds for divorce. The person seeking the divorce must not have pardoned the offence, a legal term known as “condonation”, or conspired with their spouse to commit the offence for the purpose of expediting the divorce process, referred to as “connivance”. Simply put, it’s not permissible to provoke your spouse into an adulterous act with the intention of using it as a basis for divorce.

If the spouses decide to live together again with the intention of reconciliation, and the “injured” spouse has forgiven the “offending” spouse, any previous acts of cruelty or adultery must have ceased. In such cases, the “injured” party cannot use past instances of adultery or cruelty that occurred before the resumption of the relationship as grounds for divorce.

Moreover, the divorce process becomes more complex when adultery is involved due to certain unique evidentiary and procedural rules. As a result, most divorces in Canada are granted on the basis of a one-year separation period. Even those who initially seek a divorce citing adultery or cruelty often end up finalizing their divorce on the grounds of a year’s separation to avoid the expenses of a contested trial.